New BCIS Interpretation On The 7th-Year H-1B Visa Extension

On November 2, 2002, the Twenty-First Century Department of Justice Appropriations Authorization Act (21st Century DOJ Appropriations Act) took effect making it easier for an H-1B visa holder to apply for one-year extensions beyond the 6th-year limitation on H-1B status. This benefit is available to H-1B visa holders on whose behalf a labor certification application or employment-based EB petition has been pending for 365 days or more. The 21st Century DOJ Appropriations Act amends § 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21), which first introduced the 7th-year extension.

A memo from William R. Yates, Acting Associate Director for Operations, Bureau of Citizenship and Immigration Services (Yates Memo), dated April 24, 2003, now clarifies when an H-1B holder can avail of this extension. As a background, § 214(g)(4) of the Immigration and Nationality Act (INA) restricts the H-1B visa for a maximum period of 6 years. This 6-year limitation can cause hardship to an individual who is being sponsored for a green card. As the labor certification procedure in many states is taking several years, many are unable to apply for permanent residency prior to the end of the 6th-year.

Previously, under old § 106 of AC21, the extension could only be granted if the H-1B nonimmigrant was the beneficiary of an EB petition or an application for adjustment of status, and if 365 days or more had passed since the filing of a labor certification application or since the filing of the EB immigrant petition. The new amendments now permit an H-1B visa holder to extend status beyond the 6th-year if:

1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status as an EB immigrant;1 or

2. 365 days or more have passed since the filing of an EB immigrant petition.

The Yates Memo insists that the labor certification must have been filed for at least 365 days or more prior to the date of the extension application. Thus, if the labor certification was filed less than 365 days prior to the date the alien seek s an extension, he or she would not be able to avail of the 7th-year extension.

Furthermore, the Yates Memo goes on to state that the alien beneficiary must establish that he or she is in valid H-1B status at the time the petition requesting the 7th-year is filed with the BCIS. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status, or where such status expired before the application or petition was filed. Note that 8 CFR 214.1(c)(4) provides for certain exceptions that condone late filing if, inter alia, extraordinary circumstances beyond the control of the alien can be shown.

The Yates Memo, therefore, causes enormous problems for people who may have a labor certification filed less than 365 days prior to the 6th-year. Under the new interpretation, it will not be possible to file the extension, and while the extension is pending, claim that 365 days have now elapsed since the filing of the labor certification in order to avail the 7th-year. Instead, an H-1B alien beneficiary would first have to recapture additional time, and once the additional time in H-1B status is granted, again file for the 7th-year provided it can now be shown that 365 days have elapsed since the filing of the relevant application or petition.

Let’s suppose a labor certification was filed on behalf of an alien 300 days before the 6th-year on the H-1B status was set to expire. Thus, the alien falls short by 65 days and cannot avail of the 7th-year extension. Since the alien took vacations ranging from 2-3 weeks every year, he or she is able to document at least 70 days outside the US from the first grant of H-1B status nearly six years back. If this alien can successfully recapture an additional 70 days, it would then be possible to establish that more than 365 days have elapsed since the filing of the labor certification or EB petition.

When an H-1B visa holder tries to recapture time, the Service Center often challenges such a request. Service Centers often require a showing that the time that the alien was outside the US must have been "meaningful interruptive" of the employment. Thus, brief trips outside the US on vacation or business may not be allowed for recapturing the H-1B.

But this writer has successfully argued that the "meaningful interruptive" standard is ultra vires the regulations.

8 CFR § 214.2(h)(13)(iii) provides:

"An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years (emphasis added) in the United States under section 101(a)(15) (H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year."

The regulation expressly states that the 6-year limitation only applies to an alien who has spent six years in the United States (emphasis added). Therefore, the plain language of the regulation suggests that the 6-year period only includes time spent physically present in the United States.

In Nair v. Coultice, 162 F. Supp. 2d 1209 (S.D.Cal. 2001), the District Court analyzed this regulatory provision in the same manner and declared that an alien who had spent 97 days outside the United States was entitled to the additional time on an H-1B extension. The Court also observed that the Service, which was the defendant in the lawsuit, acknowledged in the past that it had tolled the time of other aliens. Thus, according to the Court, where an agency changes its position, the agency will be required to show not only that its new policy is reasonable, but also to provide a reasonable rationale supporting its departure from prior practice. In Nair v. Coultice, the Service was unable to provide such a reasonable rationale.

Finally, an H-1B beneficiary need not rely on the labor certification that has been filed by the present employer. If a prior employer filed a labor certification more than 365 days back, and the current employer’s labor certification is less than 365 days old, the former employer’s labor certification can be relied on to obtain a 7th-year.2

Finally, the 21st Century DOL Appropriations Act provides that the alien can apply for a 7th-year extension until the final decision is made to deny the labor certification, or if the labor certification is approved, to deny the EB immigrant petition. If the EB immigrant petition was filed without labor certification, the extension is no longer valid if the EB immigrant petition is denied. Also, the extension is also not available when the adjustment of status application is either granted or denied.

The Yates Memo clarifies that the "final decision" with respect to a labor certification is a denial from the Board of Alien Labor Certification Appeals (BALCA). If the DOL denies the labor certification an alien has a right to appeal to the BALCA. While the appeal is pending, the alien can presumably continue to seek one-year extensions. However, the Yates Memo is silent as to when a final decision is made on an EB petition. Is it at the point of the denial of the I-140 petition by the Service Center or at the time when the Administrative Appeals Office (AAO) denies the petition? One could argue by analogy that the final decision is made when the AAO denies the petition.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.